Body Art and Dress Codes: How Much Say Does an Employer Have?

More and more people are getting tattoos.

Pew Research Center reported that nearly 40 per cent of American Millennials had a tattoo — far more than the Baby Boomer generation (only 15 per cent of people surveyed in that age group reported having a tattoo).

This raises the question of dress codes at work: Are employers allowed to ask employees to cover up visible tattoos while on the job?

Generally speaking, employers are entitled to set the rules of the workplace. However, there must always be a balance between personal rights and legitimate business interests. We used to discuss regulating appearance in the context of clothing.

Now, we must also address body art — tattoos and piercings.

That same Pew research I referenced earlier? It found that 25 per cent of Millennials had a piercing somewhere other than an earlobe.

While courts are willing to allow employers to dictate dress codes so long as they are within reason and do not discriminate or sexualize employees, they are more reluctant to allow employers to regulate matters of appearance that are more permanent, such as tattoos, piercings, hair length, or facial hair. Put another way, courts are far more likely to enforce a “no jeans” rule than a “no tattoos” rule, since an employee can easily remove their jeans for work and then put them back on after their shift is done.

Two rulings shed light on how an arbitrator or the courts will deal with this issue.

In 2010 the Ontario Provincial Police implemented a policy that ordered officers to cover up visible tattoos after a high-ranking officer saw a constable on patrol with tattoo-covered arms and thought he was a criminal. The constable filed a grievance and in 2011, an arbitrator struck down the policy.